Irresistible TV, but Durst Film Tests Ethics, Too

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Andrew Jarecki, whose six-part documentary series “The Jinx” examined the life of Robert A. Durst, says he did not reach out to the police until his “business” with Mr. Durst was finished.CreditJoshua Bright for The New York Times

It was the sort of publicity you cannot buy. The day before HBO broadcast the final episode of the six-part documentary series “The Jinx,” the subject of the film, Robert A. Durst, was arrested on a murder charge.

The arrest gave the impression that something dramatic would happen in the finale, and the show did not disappoint. Mr. Durst delivered what sounded a lot like an unwitting admission of guilt: “What the hell did I do?” he whispered to himself in the bathroom, apparently unaware that his microphone was still on. “Killed them all, of course.”

The filmmakers, Andrew Jarecki and Marc Smerling, had seemingly managed to elicit a confession from Mr. Durst, the estranged son of one of New York’s most prominent real estate families, who had been connected to three murders over three decades.

But with this cinematic coup came questions. When had the filmmakers shared their most incriminating discoveries with law enforcement officials? Had justice been delayed — and a suspected murderer allowed to remain free — for the sake of their story? Could the climactic grand finale of “The Jinx” ultimately become fodder for Mr. Durst’s defense team?

“There’s going to be a suggestion that this was just done for the ratings, that it was nothing more than a made-for-TV prosecution,” the celebrity defense lawyer Mark Geragos predicted.

The filmmakers appear to have conducted two separate sets of interviews with Mr. Durst. The first was in December 2010 in Los Angeles, the second in April 2012 in New York. They did not notify law enforcement officials of their meetings with him until several months later, in October 2012.

In an interview with The New York Times on Monday morning, Mr. Jarecki and Mr. Smerling said that they did not want to reach out to the police until after they had finished their “business” with Mr. Durst. “Obviously, we’re not law enforcement officers, and it’s important that we maintain our position as journalists and filmmakers,” Mr. Jarecki said, adding that he and Mr. Smerling wanted it to be clear that they were not working at the behest of the police.

The risk of creating that perception was that Mr. Durst’s defense team could later argue that the filmmakers had effectively collaborated with the police, and therefore should have notified Mr. Durst that his statements might be used against him.

The filmmakers said that the “killed them all” statement by Mr. Durst came at the tail end of the second interview, but that they did not stumble across it until more than two years later. “We hired some new assistants and they were going through some old material,” Mr. Jarecki said.

After checking his notes, Mr. Jarecki said they discovered the apparent confession in June. Asked when they turned that statement over to law enforcement authorities, the filmmakers declined to provide specifics.

“We need to be careful about how much we describe about the details of the case, so what we’ll say about that is we provided the relevant evidence to law enforcement some months ago, and it’s been in their court,” Mr. Jarecki said.

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“What the hell did I do? Killed them all, of course,” Robert Durst whispered to himself in the final episode of the HBO documentary “The Jinx.”Published OnMarch 16, 2015CreditImage by Marc Smerling, via HBO

The filmmakers may have had no legal obligation to turn over evidence immediately. But beyond the legal issues surrounding the case, there are also ethical ones. What are the responsibilities of filmmakers — or, for that matter, journalists — who come into the possession of potentially incriminating or exculpatory evidence during an investigation?

It is a question without easy answers. Any number of things could have happened in the months between the filmmakers’ final interview with Mr. Durst and their first conversation with the police. Mr. Durst could have fled. He could have died, thus depriving the families of his alleged victims of justice. Or if he really is a serial murderer, he could have killed again.

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An image from the film shows a poster of Mr. Durst’s wife, Kathleen, who disappeared in 1982.CreditHBO

The documentarian Joe Berlinger and his filmmaking partner, Bruce Sinofsky, confronted a similar problem when they were making “Paradise Lost,” which explored the trial of three teenagers who were convicted of murder in West Memphis, Ark., but freed years later after serious doubt was cast on their guilt. During the filming, a potential suspect gave the filmmakers a possible piece of evidence — a knife with blood on its hinge.

After a night of soul-searching and meetings with executives and lawyers at HBO, they decided they had a moral obligation to turn the knife over to the authorities, even though they worried that doing so might compromise their relationships in the community and hurt their film. “We felt it was incumbent on the filmmakers to make sure that that information was in the hands of the authorities as early as possible,” Mr. Berlinger said.

(HBO was not involved in the discussions over when to approach law enforcement about Mr. Durst. The film was already almost finished when the cable channel acquired it in the fall.)

Mr. Berlinger described “The Jinx” as a “triumph,” but he also said documentarians were under increasing pressure from networks to make films that more closely hewed to the conventions of scripted TV shows, like procedural crime dramas, which withheld information from the viewers until the very end for maximum impact.

“Real life doesn’t necessarily mirror the arc of scripted drama, and yet there has been this push in television to bring those two kinds of storytelling together,” he said. “That doesn’t make it wrong or bad. It just makes it a morally interesting time for documentary film.”

Mr. Durst’s bathroom mutterings were the film’s biggest bombshell, but they may be of little use when his case goes to trial. To begin with, the prosecution will need to prove beyond a reasonable doubt that the recording had not been tampered with. The defense can also argue that it came after the filmmakers had ambushed Mr. Durst in an interview, and that he was rattled and not thinking clearly.

The formulation of the apparent confession was problematic in its own right. It was suggestive, but by no means definitive. In a column on Bloomberg View, the Harvard Law professor Noah Feldman compared it to a Shakespearean soliloquy. “Even the question-and-answer form (‘What the hell did I do? Killed them all, of course’) is reminiscent of the untrustworthy soliloquies delivered by Hamlet,” Mr. Feldman wrote. “The soliloquist asks himself the big questions while alone on stage (‘To be or not to be?’), and tries on different answers.”

The timing of Mr. Durst’s arrest may have seemed choreographed, but it is also true that as “The Jinx” moved toward its climax, the odds seemed to grow that he might try to flee. When he was taken into custody while staying in a New Orleans hotel under a false name, the makers of “The Jinx” were relieved. “We were concerned that Bob was floating around,” said Mr. Jarecki, noting that he and Mr. Smerling had begun to fear for their safety.

That is the last thing Mr. Jarecki might say for a while. By noon on Monday, he had canceled all of his interviews, including a scheduled appearance on “The Tonight Show.”

“Given that we are likely to be called as witnesses in any case law enforcement may decide to bring against Robert Durst,” the filmmakers said in a statement, “it is not appropriate for us to comment further on these pending matters.”

Bruce Fretts contributed reporting.

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